Whether the Council was justified in refusing access to records concerning a planning enforcement matter under sections 29 and 31 of the FOI Act.

16 November 2018

Background

On 29 June 2018, the applicant requested access to all records held by the Council relating to a planning enforcement matter. The Council granted access to a number of records and refused access in full and in part to others on the basis of sections 15(1)(d) (information already in the public domain), 29(1)(a) (Deliberations of FOI bodies) and 37(1) (Personal information) of the FOI Act. The applicant sought an internal review on the basis of the decision of the Council to refuse to grant access to three numbered records (43, 44 and 46) on the basis of section 29(1)(a). He also referred to other records that he alleged were either missing or where there appeared to be no additional records relating to his request held by the Council. As such, while not specifically referring to the exemption at section 15(1)(a), the applicant queried whether additional records ought to exist. In its internal review, the Council affirmed its original decision and did not refer to the applicant's query about additional records. On 11 September 2018, this Office received from the applicant an application for a review of the Council's decision.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the Council and the applicant and to correspondence between the applicant, the Council and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

Scope of Review

In his submission, the applicant referred only to the Council's decision to refuse to grant access to records 43, 44 and 46 and to the matter of additional records as referred to above. However, during the review, the Council stated that in addition to the exemption at section 29, it was refusing access to two of the records on the basis of section 31(1)(a) (legal professional privilege). The applicant was informed of this and was invited to make a submission.

This review is concerned solely with whether the Council was justified in deciding to refuse access to records within the scope of the review on the basis of sections 15(1)(a), 29(1)(a) and 31(1)(a) of the FOI Act.

Preliminary Matters

In his submission, the applicant explained why he wanted access to the records. However, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. In this case, however, requests falling to be refused under section 31(1)(a) are not subject to a public interest balancing test.

Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Council to satisfy the Commissioner that its decision is justified.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence.

The applicant said that he understood that individuals met at certain times in relation to the enforcement proceedings of the Council and suggested that records of those meetings may exist. This Office asked the applicant to provide further information in support of his point that further records should exist but no additional information was provided by him. The Council was also required to provide details of searches it had undertaken in relation to the request.

In its submission, the Council referred to the applicant's description of "other meetings that were never recorded" and in particular, a meeting of 27 April 2018. The Council stated that other meetings may relate to inspections carried out by the Planning Inspector and that all Inspector's reports have been released to the applicant. The Council also stated that the meeting of 27 April was a presentation made by the applicant and that no records or minutes exist following that meeting. The Council said that "extensive searches" on its electronic system show that no other records exist.

The position of the Council is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the Council to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken, and its responses to this Office's queries, I consider that the Council has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

If the applicant has identified specific additional records which he believes are held by the Council, it is open to him to consider making a fresh request for access to those. Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps.

Section 29 (deliberative process)
The Council relied on section 29(1)(a) to refuse to grant access to records 43, 44 and 46. However, as mentioned earlier, it also refused access to records 43 and 44 on the basis of section 31(1)(a). Accordingly, I have decided to consider record 46 only under section 29 and will consider the remaining records later in this decision.

Section 29(1) provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of the Commissioner that both requirements have been met.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The record is an email exchange between members of Council staff. However, other than relying on this section to refuse the record, the Council did not provide any argument that its release would prejudice such exchanges of views and discussions such that release would be contrary to the public interest. Having examined the record, I note that it refers to comments and draft text concerning a letter that was to issue to the applicant, a record of which was released to him as part of his request. While some opinion is expressed in the record, I find it hard to see what deliberative processes were involved or to identify any particular matter in the record which relates to such processes.

In any event, in addition to showing that a record contains matter relating to the deliberative processes of an FOI body, an FOI body relying on section 29 for its refusal to grant access to a record must show that release of the record would be contrary to the public interest. The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act (which require that, on balance, the public interest would be better served by granting than by refusing to grant the request). The public interest test in section 29(1)(b) requires the FOI body to show that the granting of the request would be contrary to the public interest.

The Commissioner has found that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this was not to say that such disclosure is always, as a matter of principle, against the public interest See Case 98058 which is available on www.oic.ie. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

The Council did not show how releasing the record could cause any harm envisaged by it. In addition, the Council made no argument that the grant of access to the record could result in the requester becoming aware of a significant decision that an FOI body proposes to make (a specific consideration required by section 29(1)(b)).

Having considered the submissions of the Council and the requirements of section 29(1)(a) and (b), I do not consider it to have justified its position that the grant of access to the record would be contrary to the public interest. I find, therefore, that section 29 does not apply.

Section 31(1)(a) - Record considered to attract legal professional privilege
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Previous decisions from this Office have accepted that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (legal advice privilege), and

confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege).

Section 31(1)(a) does not require the consideration of the public interest.

The records at issue comprise internal Council email communications with a staff member who the Council has confirmed as its professional legal adviser. Having examined the records, I accept that they qualify for legal advice privilege as they disclose confidential legal advice sought from the Council's professional legal adviser. Accordingly, I find that the Council was justified in withholding access to records 43 and 44 under section 31(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Council. I affirm its decision to refuse to release further records to the applicant under section 15(1)(a) of the FOI Act on the ground that further records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I affirm its decision to refuse access to records 43 and 44 under section 31(1)(a) of the Act on the basis of legal professional privilege. I annul the decision of the Council to refuse access to record 46 and direct its release.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.